Onnoghen’s trial: Tension as NBA queries prosecuting SAN, may impose sanctions

The Nigerian Bar Association (NBA) has fired a query at Mr. Aliyu Umar (SAN), the prosecutor of the suspended Chief Justice of Nigeria (CJN), Justice Walter Onnoghen in the ongoing trial at the Code of Conduct Tribunal (CCT) for taking up the brief.

The association accuses Umar of professional misconduct for accepting the brief.

It says the senior lawyer’s action contravenes Rule 15 (3) (a) (b) and (c) jointly or severally of the Rules of professional conduct for legal practitioners.

The query is now generating bad blood in the Bar along North-South divide following an alleged secret move to de-robe and delist Umar as a lawyer because the NBA demanded a copy of his Call to Bar Certificate.

Some lawyers from the North are threatening to fight back on Umar’s behalf.

The SAN himself    has fired back at the NBA leadership

The NBA, in the February 12, 2019 query signed by its General Secretary, Gunu Taidi, directed Umar to respond to the allegation of professional misconduct against him.

It said: “We received a petition against you and hereby forward a copy for your response within twenty one (21) days.

“Your response should be in three (3) copies accompanied by a witness statement of your good self sworn before a Magistrate Court, High Court, National Industrial Court or Federal High Court in addition to the sworn witness statement of any witness (es) you may wish to call during the hearing of the petition and attach passport photos of the respective witness (es).

“Please state your full name, Supreme Court enrolment number, contact address, phone number and email address in your response and attach a copy of your Call to Bar Certificate.

“The response should be addressed to: The General Secretary Nigerian Bar Association, National Secretariat, Plot 1101 Cadastral Zone A00 Central Business District Abuja.

“Please take note that your response may be forwarded to the petitioner for his/her reply or reaction to your defence.

“Further note that a Panel may dispense with the hearing of the parties to a petition if in its opinion, a prima facie case has not been made out against the Respondent in reliance on the documents before it:

(A)   Where a Panel finds that a prima facie case has been made out against a Respondent in reliance on the documents before it, it must expressly state so with or without giving a detailed reason of the basis of its decision.

(B)    Where a Panel finds that a prima fade case has not been made out against a Respondent in reliance on the documents before it or based on evidence led before it, it shall dismiss the petition with or without giving a detailed reason of the basis of its decision.

“For further enquiries, please place a call through to the NBA Disciplinary Hotline 07080932564 or email us on legal@nigerianbar.org.ng

The NBA premised the query on a January 15, 2019 petition by another lawyer Mr. Onyeamaechi Bob James.

James, in the petition through the law firm of Bob James and Co said: “We are constrained to petition your office against Mr. Aliyu Umar (SAN) for conduct which violates Rule 15 (3) (a) (b) and (c) jointly or severally of the Rules of professional conduct for legal practitioners. TH ACTS

“Mr. Aliyu Umar (SAN) is prosecuting counsel in the case of FRN (Federal Republic of Nigeria) vs. Justice Walter Onnoghen in the Code of Conduct Tribunal Abuja.  Justice Walter Onnoghen. GCON is Chief Justice of Nigeria. He is being prosecuted in the tribunal on a six-count charge.

“In Nganjiwa vs. FRN, the Court of Appeal held that a prosecution cannot be commenced against a serving judicial officer who is subject to the disciplinary powers of the NJC unless the NJC has first considered the facts or circumstances that form the subject matter of the proposed prosecution. That is the position of the law in Nigeria today until set aside by the Supreme Court.

“Relying on that law, the Code of Conduct Tribunal in 2018 in an earlier case involving Hon Justice Ngwuta struck out the charges then pending against him.

“By order 15 (3) (c), a lawyer shall not “Knowingly advance a claim or defence that is unwarranted under existing law”, but he may advance such argument or defence ‘if it can be supported by argument in good faith for an extension, modification or reversal of existing law. “

“Mr. Aliyu in prosecuting the CJN in the Code of Conduct Tribunal is knowingly prosecuting a case that was dead on arrival, and it cannot be said that he probably intended a modification or reversal of existing law because the Code of Conduct Tribunal being inferior to the Court of Appeal cannot modify or reverse the court of appeal’s decision in Nganjiwa.

“Clearly, the conduct of the learned silk brings the legal profession into disrepute. It is a precedent that if allowed will encourage lawyers nationwide to embark on litigation that will serve to subvert legal institutions and make mockery of the litigation process.

“If Mr. Aliyu Umar gets away with this act, a lawyer in Abia can collect money from a man based in Kano who is claiming land located in Kano from another man based in Kano to file a suit for declaration of title in Umuahia High Court. Junior lawyers will start collecting money from clients to file cases that, in the language of rule 14 (2) (e) are ‘hopeless”, which is nothing but obtaining money by false pretences, and the mass media will become awash with stories of lawyers being a profession of 419 people.

“I urge you sir to use your good offices to cause a detailed investigation to be made into the role of Mr. Aliyu Umar (SAN) in this matter.”

It’s an inspired petition, says Umar

However, Umar in his response dated March 5, 2019 said the petition was ‘inspired’.

His words: “Please refer to your letter concerning the above petition, which you attached to your letter to me. Having studied your said letter dated 12th February, 2019 and the petition dated 15th January, 2019, I wish to make the following observations. (But I don’t intend to respond to your letter or the Petition for now until the Prosecution I am doing has been determined by the Tribunal).

“(A) Mr. Honourable Secretary on 4th January, 2019 there was team of lawyers on behalf of the NBA. Claiming to be holding its brief and the association have been at the Tribunal on any day of its sitting, diligently observing the proceedings. So your inspired petition has no basis as the charge is still alive and was not “dead on arrival”.

“(b) In your letter you stated that “a Panel may dispense with the hearing of the parties to a petition if in its opinion, a prima facie case has not been made out against the Respondent in reliance on the documents before it”. This clearly established that, you have documents in your possession which you did not make available to me.

“(c) Solicitors and Advocates of the Supreme Court of Nigeria have been accepting briefs to either defend or prosecute Defendants in criminal cases, and this is to the knowledge of the NBA. But, there was never a time when an attempt was made to intimidate the counsel by an inspired petition.

“You may or deliberately refused to remember the Prosecution of the Senate President and two former Chiefs of Air Staff, and Honourable Farouk Lawan which are pending or unsuccessfully conducted.

“If I may venture to add, a prosecutor’s conduct can only be found unethical after conclusion of a case but depending only on how he conducts himself or the prosecution of the case.

“Your haste to find a person who will petition against me shows the bias of my association at this point in time. And if I may say, the association is supposed to protect/ discipline members irrespective of geographic locations or any other bias.

“My certificate of Call to Bar is far away and I cannot now fish it out. I need time to do that, I will not be distracted.

“My intention in this matter is to present the facts as investigated to enable the tribunal come to a just conclusion.

“It is in the interest of the association, the Judiciary and the legal profession as a whole that the public do not perceive conspiracy by the legal profession simply because one of our own is a defendant.

“For the reasons above, I do not wish to put in any response. I hope my association will wait until I have completed the prosecution, then you can charge me with anything you want. I will then have a lot of things to say.”

A Senior Advocate of Nigeria, who spoke in confidence, said: “The NBA must watch it to avoid splitting this association along North-South divide. Some lawyers from the North are unhappy and they are also threatening showdown if anything happens to Umar.

“The NBA cannot afford to return to the crisis of the 1990 during Priscilla Kuye’s tenure. We should allow the law to run its full course to save the bench and the bar.

“I think the bar should not join this fray at all other than being a peacemaker.”

The CJN is facing a six-count trial at the Code of Conduct Tribunal (CCT).for allegedly not declaring some of his assets,

Although Onnoghen initially refused to appear before the tribunal, a bench warrant was later issued by the Chairman of CCT Mr. Danladi Umar.

Following Onnoghen’s appearance, the CCT chairman revoked the bench warrant and adjourned the trial to March 11.

But ahead of the resumption of the case, NBA has decided to probe some allegations against the prosecutor, Mr. Umar Aliyu (SAN) who was hired by the Federal Government.